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ab investiendo dicta, quod per eam vassallus, possessione, quasi veste induatur. This ceremony was so essentially necessary to the creation of a feud, that

it could not be constituted without it.-Sciendum est Lib. Feud. 1. Tit. 25. feudum sine investitura nullo modo constitui posse.

42. The convassalli or pares were the only per- Idem, Tit.28. sons who could be witnesses to the investiture; their presence was required, as much for the advantage of the lord, as of the tenant of the lord, that if the tenant was a secret enemy, or otherwise unqualified, he might be apprised of it; and that they might bear testimony of the obligations which he contracted: of the tenant, that they might testify the grant of the lord, and for what services it was made: lastly, for their own advantage, that they might know who was the tenant, and what land he held.

43. As it was frequently inconvenient for the lord to go to the lands intended to be granted, the improper investiture was introduced; which was a symbolical transfer of the lands, by the delivery of a staff, a sword, or a robe; which last being the most common method among the immediate vassals of kings and princes, gave rise to the word investiture.-Investitura quidem proprie dicitur possessio; Lib. Feud. 2. abusivo autem modo dicitur investitura, quando hasta vel aliud corporum quidlibet porrigitur a domino, se investituram facere dicente. Quem si quidem ab illo fiat qui alios habet vassallos, saltem coram duobus ex illis solemniter fieri debet: alioque licet alii intersint testes, investitura minime valet.

44. It appears from the above description that a proper investiture and possession are synonymous terms: whenever therefore investiture is distinguished from possession, it is an improper one.

Tit. 2.

Craig, Lib.2.
Tit. 2. § 4.

45. The services which the vassal was bound to perform, were declared by the lord, at the time of the investiture, in the presence of the other vassals. As a verbal declaration of the terms on which a feud was to be held, might be forgotten or mistaken, it became usual for the tenant to procure a writing from the lord, containing the terms upon which the donation was made, witnessed by the other vassals; Craig, id. §7. which was called a breve testatum. Where the lord could not conveniently come to the land, he delivered to the vassal a breve testatum, as an improper investiture; with a direction to some person to give him actual possession.

Oath of
Fidelity.

46. A breve testatum being a much better security than a verbal declaration, those who acquired feuds preferred this improper investiture, with a subsequent delivery of the possession, to a proper investiture. So that in process of time the feudal writers divided an improper investiture into three parts: a breve testatum, a præceptum seisinæ, and a possessionis traditio.

47. Upon the creation of a feud, a connexion and union arose between the lord and his vassal, considered by the feudal writers as stronger than any natural tie whatever, which the tenant was obliged to acknowledge by immediately taking the oath of Lib. Feud. 2. fidelity to the lord, in these words-Ego N. (vassallus) super hæc Sancta Dei Evangelia juro quod ab hac hora in antea usque ad ultimam vitæ meæ diem tibi M. (domino) meo fidelis ero contra omnem hominem ; excepto Rege, vel priori domino meo.

Tit. 7.

48. The idea of this oath appears to have been taken from the obligation which existed between the German princes and their comites. Thus Tacitus

says-Illum defendere, tueri, sua quoque fortia gloriæ ejus assignare, præcipuum sacramentum est.

49. Fealty was so essentially requisite to the Wright, 35. nature of a feud, whether a proper or an improper

one, that it could not exist without it. For if lands were given without a reservation of fealty, the tenure was considered as allodial; but the oath of fealty might be dispensed with.

50. When feuds became hereditary, another ce- Homage. remony was added, called homagium, or hominium, which was performed in this manner. The vassal being uncovered and ungirt, knelt down before his lord, and putting his hands within those of his lord said- Devenio homo vester de tenemento quod de vobis teneo et tenere debeo, et fidem vobis portabo contra omnes gentes. The lord then embraced the tenant, which completed the homage.

51. Fealty and homage have often been con- Hervé, founded by the feudal writers, but improperly. For Tome 1.352. Montesq. fealty was a solemn oath, made by the vassal, of fide- B. 31. c. 33. lity and attachment to his lord; whereas homage was merely an acknowledgement of tenure.

Vassal.

52. In consequence of the feudal connexion, Duties of the several duties arose, as well on the part of the lord Lord and as of the vassal. With respect to those which the lord owed to his vassal, it was a maxim of the feudal law that though the vassal only took the oath of fealty, and did homage; and the lord on account of his dignity took none, yet was he equally obliged, as if he had taken it, to do and forbear every thing, with respect to the vassal, which the vassal was bound to do and forbear towards the lord: so that the duties of both were in several respects reciprocal.

53. As for the duties which the vassal owed the lord, they are thus described in the Liber Feu

Lib. 2. Tit. 6. dorum.-Qui domino suo fidelitatem jurat, ista sex in memoria semper habere debet. Incolume, tutum, honestum, utile, facile, possibile. These were however all reduced to the two heads of counsel and aid. Under counsel was included not only giving faithful advice to the lord, but also keeping his secrets, and attending his courts; in order to enable him to distribute justice to the rest of his tenants.

Feudal aids.

Du Cange
Gloss. voce
Auxilium.

Estate of the
Vassal.

54. Aid might either be in supporting the lord's reputation and dignity, or in defending his property. By aid to his person, the vassal was not only obliged to defend his lord against his private enemies, but also to assist him in his wars: and feuds were in general originally granted on condition of military service, which was to be done in the vassal's proper person, and at his own expence.

55. The feudal law did not originally oblige the tenant to contribute to the lord's private necessities; the first feudal aid being purely military. But in course of time the lords claimed and established a right to several other aids; the principal of which were-1. To make the lord's eldest son a knight. 2. To marry the lord's eldest daughter. 3. To ransom the lord's person when taken prisoner.

56. Having stated the obligations of the lord and tenant to each other; I shall now proceed to enquire into the nature of the estate or interest which each of them had in the land.

With respect to the estate of the vassal, we must recollect that as the original donations made by the French kings to their fideles and leudes were of a temporary nature; and as nothing more than the usufruct was given to them, so in the feudal law the proprietas was allowed to remain in the lord, and the vassal had only the ususfructus, or dominium

utile; that is, a right to take and enjoy the profits of the land, as long as he performed the services due to the lord.·

57. As to the duration of feuds, they were Lib. Feud. 1. originally precarious, and might be resumed at the Tit. 1. lord's pleasure. They were next granted for one year; afterwards for life. In course of time it became unusual to reject the heir of the last tenant, if he was able to perform the services; at length feuds became hereditary, and descended to the posterity of the vassal.

able.

58. In the first ages of the feudal law, the Was unalienvassal could not alien the feud, without the consent of the lord; neither could he mortgage, or otherwise subject it to the payment of his debts. It appears however from the Liber Feudorum that Lib.2.Tit.55. feuds were frequently aliened. By a constitution of the Emperor Lotharius, reciting that the alienation of feuds had proved extremely detrimental to the military services, which were due from the vassals, they were absolutely prohibited from alienating their feuds without the consent of their lords. This was confirmed by a law of the Emperor Frederick II.

59. The consent of the lord was seldom given without his receiving a present; from whence arose a general practice of paying the lord a sum of money for permission to alien a feud.

tion.

60. There was however a mode of disposing Subinfeuda of part of a feud which does not appear to have been comprehended in the constitutions of Lotharius and Frederick. This was by a grant from the vassal, of a portion of his feud to a stranger, to be held of himself, by the same services which he owed to his lord.

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Lib. Feud. 2.

Tit. 34. § 2.

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